Kim Davis and the other clerks in Kentucky who are defying an immoral and unconstitutional Supreme Court ruling are to be commended. Precious few magistrates in our nation have decided not to pay homage to the Supreme Court. The ruling is immoral because it impugns the created order and Word of God. It is unconstitutional because the federal government has no jurisdiction over marriage granted to it in the U. S. Constitution.
As James Madison, known as the Architect of the Constitution, said in Federalist No. 45, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which remain in the State governments are numerous and indefinite.” We have long left that standard. The States have long been reduced to mere provinces of the federal government. So these actions by these clerks are refreshing to see.
There are troubling matters in this so-called act of interposition by these clerks however – they seem to be taking some bad advice from politicians and lawyers.
Not only are they not issuing marriage licenses to homosexuals, but they are not issuing them to heterosexuals either. The reason is to assure the federal courts that their intent is not to discriminate against homosexuals.
Further troubling is that the stated goal of those in leadership there in Kentucky and of these clerks is to create a 121st county clerk (Kentucky has 120) who will issue the licenses from the capitol in Frankfort. This would be done so that the clerks would not have to put their hand to being a part of the process of which they have religious disagreement.
The clerks (and others) do not want to have to lay their hand to this great evil (by issuing marriage licenses), but then promote a change in state law so that people can still do the evil – just not through them. This is not true interposition.
When standing in interposition against wickedness, lesser magistrates – like county clerks, judges, or legislators – should understand that their primary duty is to protect those who reside in their jurisdiction against the aggression of the tyrant – not to protect themselves.
Not only does the interposition of the lesser magistrates protect the people in the jurisdiction of their office against evil – but it also abates the just judgment of God.
Notice what the Lord says in Ezekiel 22:27-30:
“Her princes in her midst are like wolves tearing the prey, to shed blood, to destroy people, and to get dishonest gain. 29 The people of the land have used oppressions, committed robbery, and mistreated the poor and needy; and they wrongfully oppress the stranger. 30 So I sought for a man among them who would make a wall, and stand in the gap before Me on behalf of the land, that I should not destroy it; but I found no one.”
Kim Davis (and others) are attempting to stand in the gap. Their fealty to the Lord does not allow them to join the higher authorities in their rebellion against God. But, it is all an utter failure if they proffer actions to see the evil accomplished another way (via a website at the statehouse). It is not true interposition.
Notice what the very next verse says when the evil was allowed to continue – Ezekiel 22:31:
“Therefore I have poured out My indignation on them; I have consumed them with the fire of My wrath; and I have recompensed their deeds on their own heads,” says the Lord GOD.”
Again, their interposition is intended to abate the just judgment of God. But they (and the other magistrates) are not doing that if they help the evil get accomplished some other way.
The Bogus ‘Religious Liberty’ Position
The position the clerks have decided to stand upon is ‘religious liberty.’ Such a position is fine for an individual. But Kim Davis and the other clerks are magistrates, and as such, they possess lawful authority. Their duty goes beyond mere refusal to participate.
The ‘religious liberty’ defense has already proven a loser in the lawless federal courts. How many bakers and photographers have already lost? The federal courts have made it clear that the only religious rights you have when it comes to the homosexual juggernaut is to remain in the four walls of your building and play church.
This is the latest retreat of the GOP and the conservatives – ‘religious liberty.’ First they stood against sodomy itself. Then they accommodated themselves to that and retreated to opposing homosexual marriage. Now they are accommodating themselves to that and have retreated to religious liberty. The GOP has no fealty to Christ. They only know political expediency – an expediency for their own political ends.
The GOP is planning to use Kim Davis as a pawn to further their latest position – ‘religious liberty.’ They hope to use her to unseat the Democrats from both the governorship and the attorney general.
Governor Steve Beshear and Attorney General Jack Conway are self-serving godless men beholden to the sexual outlaws. Therefore they have refused to implement the 121st county clerk idea to protect the clerks and allow the homosexuals to marry. The GOP will now make them the targets of their ‘religious liberty’ campaign to unseat them and Kim Davis will be their poster-girl.
In the end, however, when the GOP takes power in Kentucky, they will implement the 121st county clerk and make it law that homosexuals can marry. Both the Democrat and Republican positions are wrong. They both want to make law that legalizes homosexual marriage in Kentucky.
What is Needed and Necessary
As a magistrate, Kim Davis and the other clerks should interpose against a lawless Supreme Court by refusing to participate in homosexual marriage because it impugns the created order and Word of God and it is repugnant to the Constitution.
Other magistrates – sheriff’s, district attorneys, judges, and legislators from all spheres of government – should rally around these clerks and defend them against federal aggression.
True federalism understands that all magistrates – whatever their level or sphere of jurisdiction – possess lawful authority. And that whenever one branch of government begins to play the tyrant – all other branches (whether federal, state, county, or local) have the duty then more than ever to uphold the Constitution and oppose that branch – even if that branch is the Supreme Court.
Many point to the Supremacy Clause of the U. S. Constitution to justify their lack of interposition. But this is a fiction. When you read the Supremacy Clause – Article 6, paragraph 2 of the U.S. Constitution – you see that it nowhere declares that the U. S. Supreme Court, nor any federal court, has supremacy over the U. S. Constitution or the constitutions or laws of the states or the judges of states. Rather, it states that the U.S. Constitution has supremacy and laws or treaties made in accordance with the Constitution.
The Supreme Court cannot make law. That takes legislators. Their ruling is not the ‘law of the land.’ There is not one law in all of Kentucky, nor any federal law, that states homosexuals can marry.
The Supreme Court is the lawless anarchist in this situation. Those who refuse to comply with their immoral opinion are the ones trying to restore order.
If Kim Davis were to win her case – that might be a worse situation. For decades now, when certain laws are passed, there is a religious exemption added. These laws seem good to the average self-absorbed, Pietistic Christian, but in reality they serve to further marginalize Christianity and Christians within the culture. And in this case would create the first law in Kentucky that would recognize homosexual marriage as legitimate.
If she loses – Christians may have to begin to pay a price for obedience to Christ. They will no longer have the convenience of keeping their faith a private matter.
The people (and particularly Christians) need to understand that they must demonstrate vigilance against tyranny. They must give up what most Americans pursue – wealth and ease. They must give some time and effort to good governance.
To understand the character of most men who fill America’s pulpits today, one need only look at America’s laws and policies. The pulpits are by and large filled with whores.
The people need to eschew the narcotic-effect of these pulpits. They need to prod their magistrates to do right, and rally around them when they do right – with our persons, with our finances, with our prayers.
The interposition of the lesser magistrates reminds the higher authority that their authority is delegated and has limits. No man who holds state office rules with autonomy. The authority he has is delegated to him by God. All those in positions of authority stand accountable to God – even the U. S. Federal Government.
Matthew Trewhella is the pastor of Mercy Seat Christian Church (MercySeat.net). He and his wife, Clara, have eleven children and reside in the Milwaukee, Wisconsin area. You can obtain his book The Doctrine of the Lesser Magistrates: A Proper Response to Tyranny and A Repudiation of Unlimited Obedience to Civil Government at Amazon.com or by going to the websites http://DefyTyrants.com or http://LesserMagistrate.com.